Immunity from Jurisdiction

Although States can exercise jurisdiction over persons, things and occurrences
within their territory, there are certain categories of persons and entities which are
immune from the jurisdiction of national courts. The Three principal categories are
foreign state, their diplomatic agents and international organizations.

State immunity

State immunity is the immunity given to sovereign states on the basic of

sovereign equality of states. The legal maxim provides that an equal has no power
over an equal. Therefore, it is impossible for one sovereign state to exercise
authority over another sovereign state.

The Absolute and the restrictive theories of State Immunity

There are 2 theories of state Immunity namely absolute theory and restrictive
theory.

Under the absolute theory, the practice of state was to grant foreign state
absolute immunity from the jurisdiction of their courts. In simple term, Foreign States
were immune from the jurisdiction for all acts whatsoever. Absolute state immunity
received its first judicial recognition in Schooner Exchange v McFaddon, Chief
Justice Marshall of the United States Supreme Court held that "one sovereign is in
no respect amenable to another." Obviously, such a strict doctrine caused hardship
to individual litigants given the fact that there were not remedy for them and they
were denied of protection of law even the clearest cases of wrongful act by foreign
state.

Under the restrictive theory, State can enjoy immunity from the jurisdiction of a
municipal court only in respect of their governmental acts but not their commercial
acts. The basic of this theory is found on the fact that when a state undertakes
commitments of a private law nature there would be no good reason why any dispute
arising from such commitments should not be determined by ordinary courts of law.
In the New Zealand Court of Appeal, it was held in Governor of Pitcairn and
Associated Islands v Sutton that a state's commercial activities are no longer
protected by immunity

In the case of Commonwealth of Australia v Midford (Malaysia)Sdn Bhd, the

high court ordered two officers of Australian Customs Service to return all documents
and files seized by them belonging to Midford. The Commonwealth of Australia
appealed to set aside the order on the ground that it was a foreign state recognized
by Malaysia and was clothed with immunity. The Supreme Court held that restrictive
doctrine shall be applied here. The court found that the issue shall be whether the
acts were done within the commercial activity or governmental activity. The court
held that the two Australian Customs officers could not be classified as commercial
and was therefore entitled to immunity.
 Although a certain number of states still accept the principle of absolute immunity,
the principle of restrictive immunity is adopted by most states such like UK, Australia,
Canada, Singapore, or even Pakistan.

Distinction between Sovereign act and Commercial act

The purpose of the act (Subjective test)

It proposes the distinction of the act based on the purpose of the act. For
instances, for case involving the purchase of Military boots, without a doubt such
nature of the act is commercial. However, from the basic of the purpose of the act, it
is definitely a sovereign act and the protection of immunity from jurisdiction would be
granted.

In the Trendtex Trading Corp v Central Bank of Nigeria, the court of appeal
stipulated that the purpose of a state’s act was immaterial in deciding whether it was
governmental or commercial. It was sufficient if the nature of the transaction itself
was a commercial type such as a contract for the supply of goods or services.

Nature of the act (Objective test)

As the name suggested, the distinction is made on the basic of the nature of the
act. The basic criterion is whether the key transaction is a private law relationship,
such as contract, which can also be made by a private individual without any
governmental authority. For example, a contract for the purchase of uniforms for the
army would be regarded as a commercial act since the nature of the transaction is a
commercial contract although one of te parties is a state and the purpose is to be
used for military.

In the United States, the Foreign Sovereign Immunities Act 1976 states clearly
that the commercial character of an activity shall be determined by reference to the
nature of the course of conduct or the act rather than by reference to its purpose.

In the case of Republic of Argentina v Weltover Inc, A suit filed in a U.S. court on
the premise that Argentina (D) defaulted on the bonds it had issued was strongly
contended by Argentina The issue was upon a foreign government defaults on its
bonds, can such foreign government may be amenable to suit in a U.S. court. The
court relied upon the act above and held that when a foreign government defaults on
its bonds, such foreign government may be amenable to suit in a U.S. court. This is
based on the exception of commercial activities created by the Foreign Sovereign
Immunity of 1976

In the UK, the court of appeal adopted the nature of the act test in the Trendrex
case, where it held that since the transaction was essentially commercial, the Central
bank of Nigeria had no immunity, although it was charged with the function of a state
organ.In I Congresso del Partido, Lord Denning refused immunity to the Cuban
Government, arguing that it did not matter what was the purpose of the repudiation
and that the motive cannot alter the nature of the act.

In the case of Germany v. Italy (Greece Intervening), the Federal Republic of

Germany sued the Italian Republic for the failure of Italy to respect the jurisdictional
immunity of Germany by allowing civil claims to be brought against it in seeking
reparation for injuries caused by violations of international humanitarian law
committed by the Third Reich during the Second World War. The court held that a
State was not deprived of immunity by reason of the fact that it was accused of
serious violations of international human rights law or the international law of armed
conflict. The court found that the nature of the act was not commercial nature and
therefore, the Italy had violated the international law.

In the case of Holland v Lampen- Wolfe, The US established a base at Menwith

Hill in Yorkshire, and provided educational services through its staff to staff families.
The claimant a teacher employed at the base alleged that a report on her was
defamatory. The defendant relied on state immunity. The issue before the court is
whether the nature of the act falls within the scope of commercial act. The court held
that the preparation of the report and ‘the performance of her teaching obligations
under the contract between the University and the American Government involved
the public function of the state in the provision of instruction to the American forces
and their families. Therefore, a claim in libel was defeated by a claim of sovereign
immunity.

Subject Matter approach

In the case of Victory Transport case, it suggested that a list of sovereign acts can
be drawn out in advance to which a court could refer to should a dispute arise. In this
case, the court listed as exclusive sovereign acts, international administrative acts
such as expulsion of an alien, legislative acts such as nationalization, act concerning
the armed forces, act concerning diplomatic activity and public loan.

The Two-Stage Test

In the case of I congress del Partido case, the House of Lords developed a two
stage test. According to this test, the court has to examine the entire context, namely
to look at the whole case, both the initial transaction between the parties and the
particular act that gives rise to the dispute. For the matter to be commrical act, both
of these acts have to be private law acts.

In this case, two ships were carrying sugar to Chile on behalf of a Cuba State-
trading enterprise. Later, the first ship was ordered to return to Cuba with most of her
sugar unloaded and the second ship was ordered to Vietnam where the sugar was
sold. The plaintiff, who was the owner of sugar, brought an action against I Congreso
which was owned by Cuba. Cuba claimed state immunity. However, the immunity
was denied as the house of lord of the opinion that the initial acr was a contract for
the supply of sugar and it was a private law. In regards to the act constituted to the
dispute namely the act of diverting the sugar to another destination, the court found
that it was a private law act.

Head of State Immunity

Both heads of state and heads of government, by reason of the functions which
they exercise on behalf of the state, were treated as a state which enjoys immunity
under international law.

Immunity of serving Head of State

Personal Inviolability

In the Schooner Exchange, the court acknowledged the exemption of the person
of the sovereign from arrest and detention within a foreign territory. Therefore, it is
accepted that the head of state is entitled to personal inviolability and freedom from
arrest or detention which is greater than a diplomat.

Immunity from civil proceeding

In principle, all jurisdiction recognize that head of state immunity is immune from
civil proceedings, but some have drawn a distinction between public and private act.
In the case of Nobili v Charles I of Australia, the court refused to allow the immunity
to the Emperor of Austria in action brought against him in respect of private act.

In Common law jurisdiction, it upholds a wide immunity so as to include private

act for its civil jurisdiction. In the case of Mighell v State of Johor, the sultan, as a
ruler of a sovereign state, was held to be immune from English Court’s jurisdiction for
a breach of promise to marry

In the case of Lafontant v Aristide, Plaintiff Lafontant brought a civil action

against the President of Haiti Aristide for his alleged role in ordering the execution of
plaintiff’s husband. Aristide apparently had this execution carried out by other officers
in his government because plaintiff’s husband participated in a failed coup aimed at
ousting Aristide from power. The plaintiff pleaded the Alien Tort Statute and the
Torture Victim protection act as her basic for the suits. The court held that the
defendant was immunity from being sued.

In Ye v Zemin, the plaintiffs brought a civil action against the Chinese President
Zemin for acts of “torture, genocide, arbitrary arrest and imprisonment, as well as
other claims related to the [plaintiffs’] freedom of conscience, movement, and religion.
The court of Appeal held that the President was entitled to the immunity.

In the case of Germany v Italy, The victims of the WWII in Italy brought a civil suit
against Germany for compensation for forced labor. Germany claimed that it has
foreign sovereign immunity including the immunity for its head of state. The ICJ
accepted Germany’s claim because it found no customary international law, in which
a state loses its sovereign immunity because the state violates jus cogens norms.
However, the Court added that the decision does not affect customary international
law on head of state immunity as seen in Pinochet case. It was the view of the court
that even if Pinochet has acted in his private capacity in committing torture, the
victims of torture cannot sue Chile for damages in foreign courts.

Immunity from criminal proceedings

A serving head of state enjoys absolute immunity from criminal jurisdiction for the
acts performed in official functions and private acts.

In the Ghadaffi case, the france court held that Colonel Ghadaffi as head of
state of Libya was immune from jurisdiction for the alleged complicity in act of
terrorism leading to the destruction of a civilian aircraft.

In the case of The Prosecutor v Omar Hassan Ahmad Al Bashir, the accused,
who was the president of Sudan, was prosecuted in the ICC for genocide, crimes
against humanity and war crimes in Darfur. Several arrest warrant was served.
However, upon the accused’s visit to South Africa, the South Africa had failed to
arrest him. The court held that South Africa had failed to comply with its obligations
under the Rome Statute to arrest al-Bashir during the Africa Union summit in 2015.
The court clearly stipulates that there will be no immunity for the worst crimes known
in international law.

In the case of Equatorial Guinea v. France, the French Court accepted the
complaint against the defendat who was the Vice- President of Equatorial Guinea in
respect of allegations of misappropriation of public funds as well as money-
laundering where the proceeds of which had allegedly been invested in France. The
defendant relied upon the Article 4 of the Palermo Convention to claim for immunity
as a head of state from foreign criminal jurisdiction. The court, by interpreting Article
4 of the convention, held that such Article 4 does not including the immunity for the
head of state against foreign criminal jurisdiction. However, in the dissenting
judgment of the other judges, it was their views that Article 4 shall include the
protection of immunity of head of state from foreign criminal jurisdiction.

Minister for foreign affairs

Under Article 7 of Vienna Convention on the Law of Treaties, the minister for
foreign affairs is considered to represent his or her state.

In Arrest Warrant case, the International court had confirmed that a minister for
foreign affairs is responsible for his state’s relation with all other states, therefore, he
is recognized as representative of the state solely of his office. The consequences of
such statues confer personal inviolability and immunity from criminal jurisdiction.
Immunity for former head of state

Article 21(1) and (2) of the New York Convention on Special Mission provide that
head of state, head of state and minister for foreign affair, upon taking part in a
special mission shall enjoy immunities accorded by international law. This only
mentions the head of state or head of government in office.

Under the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, it does not recognize any immunity defence to the head of
states nor to say the former head of state.

Article 27(1) of Rome Statute of the International Court provides that the official
capacity as a head of state or government, an elected representative shall in no case
exempt a person from criminal responsibility. Article 27(2) further provides that
immunities attached to the official capacity of a person shall not bar the court from
exercising its jurisdiction over a person.

A former head of state has no immunity for the private acts committed while in
office. In Noriega case, drugs committed by General Noriega when he acted as head
of Paname have been regarded by US court as private acts for which no immunity
survives. Prior to the case of Pinochet, it was assumed that a former head of state
was entitled to immunity for criminal acts committed in the course of his functions
while he was a head of state. Yet the situation has change.

In R v BowmStreet Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte,

Pinochet as a former President of Chile, was indicted by a Spanish judge on charge
of torture and conspiracy to torture where he committed during his tenure as head of
state. While he was in a UK hospital for treatment, the Spanish Government
requested the UK government to extradite him to Spanish. The Issue was whether
he was immune from the proceeding as the head of state. The house of lord held
that Pinochet was not immune because torture was a crime under international law
which immunity as a head of state was not available. The house of lord held that a
former head of state is not entitled to immunity if he committed an international crime
while he was a serving head of state.

In the case of Bosnia and Herzegovina v. Serbia and Montenegro, The ICTY
convicted the former Commander of the Main Staff of the Bosnian Serb Army (VRS)
of genocide, crimes against humanity and violations of the laws or customs of war. It
was found that he was guilty of the crimes of terror, unlawful attacks on civilians and
murder of many Bosnian Muslims and Bosnian Croats. Such conviction illustrated
that the immunity does not preclude the violation of international crimes
State Immunity versus International Crimes

In the case of Siderman de Blake v. Republic of Argentina, it upheld that the

official function of head of state does not include the violation of the fundamental
human right.

In the case of Congo v Belgium, Belgium issued an arrest warrant against

Yerodia, who at the time was an incumbent state official, for grave breach of the
Geneva Conventions and the additional protocols, and crimes against humanity.
Congo claimed that Belgium violated international law by failing to refuse to
prosecute an incumbent state official, and brought a claim against Belgium in ICJ.
Belgium claimed that state officials do not have immunity when the crimes in issue
constitute war crimes or crimes against humanity. The ICJ rejected Belgium’s claim
and found that Belgium violated international law because no customary international
can be deduced to deny incumbent state official’s immunity, although various cases
below suggest the existence of such an exception. Therefore, The ICJ held that the
incumbent state official has absolute immunity even when a domestic court indicts
him for a core international crime irrespective of whether such act was personal or
official capacity.

In the Pinochet case, the majority ruled that a rule of customary international
law has been established to the effect that heads of state and other state officials
cannot claims immunity if they committed international crimes.

In the Arrest Warrant case, an international arrest warrant was issued by

Belgium judge against the Congo’s Minister for foreign affairs. The warrant accused
that him of crimes against humanity and grave breaches of Ganeva Conventions and
the additional Protocol for speeches addressing racial hatred. The court found that
throughout the duration of his office, the minister for foreign affairs when aborad
enjoyed full immunities from criminal jurisdiction and inviolability. The court further
held that there is no exception to the rule, therefore, the arrest warrant violated the
immunity enjoyed by him as the Congo’s Minister for foreign affairs.

In the case of Germany v Italy, The victims of the WWII in Italy brought a civil
suit against Germany for compensation for forced labor and other international
crimes. Germany claimed that it has foreign sovereign immunity, and no exception to
state immunity exists for jus cogens norms violation.The ICJ accepted Germany’s
claim because it found no customary international law, in which a state loses its
sovereign immunity because the state violates jus cogens norms. However, the
Court added that the decision does not affect customary international law on head of
state immunity as seen in Pinochet case.

In the case of Bosnia and Herzegovina v. Serbia and Montenegro, The ICTY
convicted the former Commander of the Main Staff of the Bosnian Serb Army (VRS)
of genocide, crimes against humanity and violations of the laws or customs of war. It
was found that he was guilty of the crimes of terror, unlawful attacks on civilians and
murder of many Bosnian Muslims and Bosnian Croats. Such conviction illustrated
that the immunity does not preclude the violation of international crimes

Diplomatic Immunity

Article 2 of Vienna Convention on Diplomatic Relations provides that diplomatic

relations are established by mutual consent between the two states concerned (the
ending and the receiving and the state).

Inviolability

Inviolability can be defined as secureness from violation, assault or trespass.

For inter-state diplomacy, the principle of Inviolability is constitutional. There are two
forms of inviolability, namely inviolability of the premise of the mission and
inviolability of diplomatic agents.

Inviolability of the premises of the mission –Article 22

Inviolability of the premises and not to enter without consent

Article 22(1) provides that the premise of the mission shall be inviolable and the
agents of the receiving state may not enter them except with the consent of the head
of the mission.

In 767 Third Avenue Associates v Permanent mission of Zaire, where a New

York City landlord faced with the difficulty collecting rent from Mission. As the
Mission defaulted in its rental payment, the landlord notified that it was terminating
the tenancy. The Mission refused to vacate the premises. The court held that the
inviolability of a United Nation Mission under international and US law precludes the
forcible eviction of the mission. It was held that no one may enter the mission without
consent. The court added that even If the process serves do not enter the premises
but carry out their duty at the door, such act would constitute to an infringement.

In Sun Yat Sen Incident, the court refused to issue a writ of harbeas corpus in
respect of a Chiness refugee held against his will in the Chinese legation in London.

In the Assange v. Swedish Prosecution Authority case, the court upheld the
arrest warrant for the detention of Julian Assange on suspicion of rape, three cases
of sexual molestation and unlawful coercion, seeking the arrest and surrender of
Assage. However, He walked into the Ecuadora ambassy in London and requested
diplomatic asylum from the Ecuadorian government so as to prevent the U.K. from
extraditing him to Sweden. Subsequently, he was granted asylum. By virtue of Article
22(1) he is protected from the arrest of UK police since the Article granted the
inviolability to the premises of the mission except with the consent.

In the case of Equatorial Guinea v France, the ICJ, by virtue of Article 22(1),
held that Equatorial Guinea was entitled to the protection of inviolability of the
premises given the fact that he was considered as a mission. Given the fact that the
premises in question has been search without permission for a numerous of times,
the court held that he may entitled to invoke article 22(1) for the protection

Emergency

In the Shooting episode at Libyan embassy, an orderly demonstration was

held in front of the Libyan People’s Bureau in London. Shots were fired from the
windows of the Bureau, killing a woman police constable who wsa on duty in the
square. The Libyan authorities were immediately asked to instruct those inside the
Bureau to leave the building and to allow it to be searched for weapons and
explosives. But the request was rejected and the British government finally had to
notify Libya that the diplomatic relations were terminated and those in Bureau had to
leave the building.

Special Duty to protect the premises against intrusion or damage

Article 22(2) provides that the receiving state is under special duty to take all
appropriate steps to protect the premises of the mission against any intrusion or
damage and to prevent any disturbance of peace of the mission or impairment of its
dignity

In the United State Diplomatic and Consular Staff in Tehran case, the Iranian
students and demonstrators took possession of the United States Embassy in
Tehran by force. The diplomatic and consular staff were held hostage. The US
brought the case to international court. The court held that Iran had violated Article
22 as it has the obligation to take all appropriate steps to ensure the protection of the
US Embassy and Consulates, their staff, their archives, means of communication
and the free movement of the member of their staff.

In Congo v Uganda, the court held that the attacks on Uganda Embassy and
attacks on person on the premises by Congolese armed force constituted a grave
violation of article 22. The court further held that the viena convention does not only
prohibit any infringement of the inviolability of the mission by receiving states but
also put the receiving states under an obligation to prevent others from doing so.

In the Kosovo Crisis, the Chinese Embassy was bombed by US. The US
declared that it had been mistake and apologized. Subsequently, US made
compensation to China

In the case of Equatorial Guinea v France, The ICJ, by virtue of section 22(1),
affirmed that a mission is entitled to the protection of the premises by the receiving
state from intrusion, damage or disturbance of the peace of the mission by agents
of the receiving State.
 In the 2016 attack on Saudi diplomatic missions in Iran, several thousand
demonstrators gathered near the embassy to protest and strongly condemn against
the execution of Sheikh Nimr. Some participants attempted stormed the building by
climbing the embassy's fence, breaking down the door, throwing around papers on
the roof and seizing the Saudi flag. Some of the demonstrators thrown petrol bombs
and Molotov cocktails at the embassy and then broke into the compound.
Subsequently, the police arrived and dispersed protesters from the embassy
premises and extinguished the fire. This demonstrates the duties upon the Iran to
protect the premises against damage and instrusion.

Immunity of premises, property and means of Transport

Article 22(3) provides that the premises of the mission, their furnishing and other
property and the means of transport shall be immune from search, requisition,
attachment or execution.

In the case of Equatorial Guinea v France, the ICJ, by virtue of Article 22(1),
held that the Article guarantees immunity from search, requisition, attachment or
execution for the premises of the mission, their furnishings and other property
thereon, as well as means of transportation of the mission.

Inviolability of Private residence and the achieves and document of the

mission

Article 24 provides that the archives and document of mission are inviolable at
any time and wherever they may be. According Article 30 provides that the private
residence of a diplomatic agent also enjoy the same inviolability and protection
premises of the mission

In Agbor v Metropolitan Police Commissioner, the case concerns as to the

inviolability of the private residence of the Nigeria diplomat whom had moved out of
his flat for “redecoration”. When the diplomat moved out, a Biafran family moved in.
The Nigerian High Commissioner claimed that the residence still maintained its
inviolability and requested police assistance to evict the family. However, the court
found that the diplomat had moved out permanently and it had thus lost its
inviolability.

In the case of R v Secretary of State for Foreign and Commonwealth Affairs, the
issue before the court was whether a leaked cable from the US Embassy in London
was admissible to the court. The Supreme Court held that the cable was not entitled
to the protection of Article 24 given the fact that the publication of the cable by
Wikileaks and the newspapers had put it into the public domain.

Right of diplomatic asylum

Most the states do not recognized the right of diplomatic asylum, where the
diplomatic premises do not enjoy extraterritoriality but only recognizes the
inviolability of diplomatic premises. However, the practice of states seems to show
that diplomatic mission may grant temporary shelter in case of absolute necessity for
prevention of innocent human lives on humanitarian grounds.

In the Assange v. Swedish Prosecution Authority case, the court upheld the
arrest warrant for the detention of Julian Assange on suspicion of rape, three cases
of sexual molestation and unlawful coercion, seeking the arrest and surrender of
Assage. However, He walked into the Ecuadora ambassy in London and requested
diplomatic asylum from the Ecuadorian government so as to prevent the U.K. from
extraditing him to Sweden. Subsequently, he was granted asylum. By virtue of Article
22(1) he is protected from the arrest of UK police since the Article granted the
inviolability to the premises of the mission except with the consent.

In the Chen Guangcheng’s case, He was placed under house arrest; he

escaped and sought refuge in the US Embassy in Beijing. This was only a second
case of a foreign diplomatic mission granting protective custody to a dissident in
China. Upon the threat to his family members, he and his family were granted
political asylum in the US following negotiations between the White House and the
Chinese Government.

Temporary Refuge

The practice of State seems to show that diplomatic mission may grant temporary
shelter in case of absolute necessity for preservation of innocent human lives on
humanitarian ground.

Inviolability of diplomatic agents

Article 29 of Vienna Convention provides that the person of a diplomatic agent

shall be inviolable. He shall not be liable to any form of arrest or detention. The
receiving state shall treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.

In fact the UN Convention on the Prevention and Punishment of Crimes against

Internationally Protected Persons, Including Diplomatic Agents was adopted. Under
this Convention, State Parties are required to make attacks upon such persons a
crime in International law with appropriate penalties. They are obliged to either
prosecute or extradite offenders.

In the US Diplomatic and Consular Staff in Tehran case, the US diplomat was
held as hostages for 44 days by the Iranian case. The World Court held that the
inaction on the part of Iran to protect and later to prevent further detention of US
diplomats constituted a serious violation of Article 29.

In Congo v Uganda, the International Court of Justice held that the maltreatment
by Congo armed forces of diplomats in the Ugandan embassy as well as the airport
constituted infringements of Article 29.
 In Ethiopia’s Diplomatic Claim, the claim commission decided that Eritrea was
liable for violating Article 29 by arresting and briefly detaining the Ethiopian Charged’
Affaires without regards to his diplomatic immunity.

In the 2016 attack on Saudi diplomatic missions in Iran, several thousand

demonstrators gathered near the embassy to protest and strongly condemn against
the execution of Sheikh Nimr. Some participants attempted stormed the building by
climbing the embassy's fence, breaking down the door, throwing around papers on
the roof and seizing the Saudi flag. Some of the demonstrators thrown petrol bombs
and Molotov cocktails at the embassy and then broke into the compound.
Subsequently, the police arrived and dispersed protesters from the embassy
premises and extinguished the fire. This demonstrates the duties upon the Iran to
protect the premises against damage and instrusion.

In 2018, a soldier guarding the embassy in Vienna was stabbed repeatedly but
tackled the attacker to the ground and tried to disarm him with pepper spray before
opening fire. Subsequently the soldier guarding the embassy had shot dead the
knifeman.

Exception to the Immunity of diplomatic agent

One of the plausible exceptions is to differentiate an official diplomatic function

from a private commercial function for the purpose of diplomatic immunity. This
assertion can found on its basic in the case of Tabian v Mufti, where it proposed the
position that Courts could conceivably read “commercial activity” to cover
“contractual relationships for goods and services incidental to the daily life of the
diplomat and family in the receiving State” by finding that such household relations
constitute “the pursuit of trade or business activity” separate from a diplomatic
activity. However, the court also narrowed down the scope commercial activity so as
to exclude diplomats’ contracts with and employment of domestic workers.

In this case, the U.S. Court of Appeals for the Fourth Circuit in Tabion v. Mufti in
1996 used this narrow interpretation to dismiss on diplomatic immunity grounds a
complaint filed by a domestic worker from the Philippines against a Jordanian
diplomat working in Washington, D.C. at the time. The worker, Corazon Tabion, sued
the diplomat, Faris Mufti, for “false imprisonment and fair labor violations,” inter alia.
The court concluded that employment of domestic workers is not a commercial
activity. U.S. courts have thus uniformly dismissed lawsuits filed by domestic workers
against their diplomat employers on immunity grounds

However, according to American lawyer Amy Tai, it was argued that diplomats
should be held responsible for abuse of domestic workers. Tai explains that,
regardless of the immunity, the U.S. State Department’s Foreign Affairs Manual
(FAM) provides for the Department to request waivers of immunity from the
diplomat’s government for criminal charges filed against the foreign diplomat, which
allows U.S. courts to investigate and prosecute the cases. The FAM also makes
clear that diplomatic immunity does not permit diplomats to deny workers fair wages.
Putting these two together, Tai argues that waivers could be sought for actions
seeking relief for domestic workers.

Secondly, some lawyers have begun to argue that the notion of jus cogens might
limit diplomatic and state immunities. The notion of jus cogens – “a norm from which
states are not allowed to depart under any circumstances” – is deeply ingrained in
international law. States have recognized many dictates of international law as jus
cogens, such as the prohibition of torture, piracy, genocide, and slavery.

According to Caplan as well as Knuchel, it was the scholars opinion that The use
of jus cogens to protect human rights is an emerging phenomenon in legal opinions
that might permit both diplomats and sovereign states to be held accountable for
human rights violations.

In the United State Supreme Court case of Samantar v Yousuf, the Somali
natives who filed allegations of torture, rape, arbitrary detention, and extrajudicial
killing against the former Somali Minister of Defense, First Vice President, and Prime
Minister could base their claim on the defendant's violation of jus cogens – the
prohibition of torture. Although the Court rejected the immunity claim on other
grounds, but it illustrated the plausible of using the violation of jus cogens as the
basic of the claim.

In 1948, the Japanese ambassador to Belgium, General Oshima, was sentenced

by a military tribunal for his war crimes during the Second World War despite his
immunity as a diplomatic.

Disturbing the internal order of the receiving state

However, in Tehran case, the world court assert the proposition that an
exception to the immunity is when the diplomat himself commits an act of violence
which disturbs the internal order of the receiving state to such an extent that the
receiving state finds it necessary to restrain him from committing such acts.

Waiver of Immunity

Article 32 provides that the immunity from jurisdiction of diplomatic agents may
be waived by the sending state. Practically, this notion can be considered as a
“legitimate” option for the receiving states to request and hold the diplomatic agent to
be liable considering the effect of absolute immunity of the diplomatic agent. The
request for waiver of Immunity usually means that the criminal offences in question is
of such degree that if the sending state does not waive the immunity, the receiving
state is no longer prepared to accept diplomat in issue as a diplomatic agent.

One of the examples is that the fact that the Geogian diplomat in the United
States was involved in tragic automobile accident that resulted in the death of a
Brazilian national in Washington D.C. He was alleged to have been driving at a
speed of eighty miles per hour under the influence of alcohol. Given his diplomatic
status, he was not given a blood test. Subsequently, the Georgian President waived
his diplomatic immunity. As a result, he was convicted and served his sentences in
United States.

Immunity from Jurisdiction

Diplomatic agents are immune from the jurisdiction of local court.

Immunity from Criminal Jurisdiction

Article 31(1) provides that a diplomatic agent shall be immune from criminal
jurisdiction of the receiving states. However, Article 41 imposed an obligation to the
diplomatic agent to respect the laws of receiving state. Besides, Article 31(4)
provides that the immunity of a diplomatic agent from the jurisdiction of the receiving
state does not exempt him from the jurisdiction of the sending State.

In the case of Dickinson v Del Solar, it was held that diplomatic privilege does not
import immunity from legal liability but only exemption from local jurisdiction.

In Arrest Warrant case, the ICJ pointed out that the diplomatic and consular
agents are entitled to immunity from criminal jurisdiction of receiving state.

In the case of Li Weixum v Bo Xilai, the US Executive Branch has asserted that
foreign officials only temporarily in the United States on ‘special diplomatic mission’
are entitled to immunity from the jurisdiction (criminal and civil) of US courts.

In the case of Equatorial Guinea v France, the ICJ affirmed that that diplomatic
agent is entitled to the immunity from foreign criminal jurisdiction.

Immunity from Civil and Administrative Jurisdiction

In respect of Civil and Administrative jurisdiction, diplomatic agents cannot enjoy

absolute immunity. Under Article 31(1) of Vienna Convention, it provides that a
diplomatic agent shall enjoy immunity from its civil and administrative jurisdiction
except in the case of a real action relating to private immovable property, an action
relating to succession, an action relating to any professional or commercial activity.
Article 31(2) provides that a diplomatic agent is not obliged to give evidence as a
witness. Article 31(3) provides that no measure of execution may be taken in respect
of a diplomatic agent except in the three exception for civil jurisdiction mentioned
above.

Waiver of Immunity

Article 32 provides that the immunity from jurisdiction of diplomatic agents may
be waived by the sending state.
Persona Non Grata – Article 9 provides that the receiving State may at any time and
without having to explain its decision, notify the sending state that the head of the
mission or any member of diplomatic staff is persona non grata.

Persons entitled to diplomatic immunity

According to Article 1(e) of Vienna Convention, a diplomatic agent is the head of

the mission or a member of the diplomatic staff of the mission. Article 1(d) provides
that members of the diplomatic staff are the member of the staff of mission having
diplomatic rank. Therefore, the term diplomatic agent includes the head of mission
(the Ambassador, the Envoy or Minister, or the Charged’ Affaires) and the staff of the
mission having diplomatic rank: The Counsellors, The secretaries and the Attache
officers.

Article 37 of Vienna Convention extend the diplomatic immunities to the members

of the family of a diplomatic agent, members of administrative and technical staff of
the mission, members of the service staff on the mission. In regards to the private
servants of members of the mission, the article provides that they shall be exempted
from taxes.

In Empson v Smith, the defendant was an administrative officer with the

Canadian High Commission. The plaintiff sued for breach of a tenancy agreement
and the defendant claimed diplomatic immunity. The court of appeal held that he was
no entitled to the immunity as his position does not extend the immunity from civil
jurisdiction to acts performed outside the course of his official duties.

In Engelke v Musmann, it defined an ambassador’s family as his wife and

children if living with them.